649F. Supp.1070 (1986) PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; Sierra Club, a non-profit corporation; National Audubon Society, a non-profit association; and Alan C. Ziegler, Plaintiffs, v. HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; and Susumu Ono, in his capacity as chairman of the Hawaii Board of Land and Natural Resources, Defendants, and Sportsmen of Hawaii, Inc., Hawaii Island Archery Club, Hawaii Rifle Association, Gerald Kang, Kenneth Funai, John Wong and Irwin Kawano, Defendants/Intervenors.Civ. No. 78-0030. United States District Court, D. Hawaii. November 18, 1986.
*1071 Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., William S. Hunt, Paul, Johnson & Alston, Pacific Tower, Honolulu, Hawaii, of counsel, for plaintiffs. Edwin P. Watson, Deputy Atty. Gen., Corinne Watanabe, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants. Katsuya Yamada, Hilo, Hawaii, for Sportsmen of Hawaii, Inc., Hawaii Island Archery Club, Gerald King, Kenneth Funai, and John Wong. John S. Carroll, Honolulu, Hawaii, for Hawaii Rifle Ass'n and Irwin Kawano.
OPINION SAMUEL P. KING, Senior District Judge. In this proceeding, I face the competing interests of mouflon sheep hunters on the slopes of Mauna Kea and of the endangered bird species Palila, which makes its home there.
Earlier proceedings involved a similar conflict but were limited to feral sheep and goats. In Palila v. Hawaii Department of Land and Natural Resources,471F. Supp.985 (D.Hawaii 1979) (Palila I), I found that the feral sheep and goats were "harming" the Palila in contravention of the Endangered Species Act and ordered the State of Hawaii to remove all feral sheep and goats from the critical habitat of the Palila.
At that time, Jon G. Giffin, Wildlife Biologist in the Division of Forestry and Wildlife in the Department of Land and Natural Resources, was studying mouflon sheep and their impact on the critical habitat of the Palila. In deference to Mr. Giffin, the State of Hawaii, and the claims of hunters that mouflon sheep did not present the same potential for harm to the Palila's critical habitat as did the feral sheep, the plaintiffs specifically excluded mouflon sheep from their prayers for relief.
The mouflon sheep study has since been completed. On the basis of the findings, plaintiffs refiled an action, essentially identical to their original action, but this time aimed at mouflon sheep. They seek a mandatory *1072 injunction requiring the State of Hawaii to remove all mouflon sheep from the critical habitat of the Palila. The only issue before me, then, is whether the mouflon sheep are "harming" the Palila, as prohibited by the Endangered Species Act and its corresponding regulations.
FACTUAL BACKGROUND A. The Bird The Palila, Loxioides bailleui, is a six-inch long finch-billed member of the Hawaiian honeycreeper sub-family (Drepanidinae). It has a golden-yellow head, black lores, a whitish abdomen, and a gray back.
Palila, which are endemic to Hawaii, are today found only in a small area on the upper slopes (approximately 6600 feet to treeline, 9400 feet) of Mauna Kea on the island of Hawaii. This represents approximately ten percent of the bird's historical range. When first officially discovered in 1876, Palila lived only on the island of Hawaii. It was common in north and south Kona and on the slopes of Mauna Kea in the Hamakua and Hilo Districts. By 1894, the birds were no longer found in Kona. This extirpation may have resulted from avian malaria carried by mosquitoes whose populations increased rapidly with ranching activities in the late nineteenth century.
By the mid-twentieth century, the range had shrunk to its present area, largely due to habitat destruction from grazing ungulates (hoofed mammals). Feral cattle, horses, sheep, and pigs were established on Mauna Kea by the early 1800s. However, the feral cattle and horses were removed in the 1920s and 1930s, and the feral pigs do not appear to have a significant adverse effect on the mamane ecosystem. Feral goats appeared in some numbers in the 1930s, and mouflon sheep were introduced in 1963. As discussed more fully in Palila I, 471 F.Supp. at 989-90, the feral goats and sheep, which the Department of Land and Natural Resources maintained for sport hunting purposes, had a devastating effect on the mamane forest. The ensuing negative impact on the Palila habitat and on the Palila prompted my order for the removal of the feral sheep and goats from the bird's critical habitat.
The Palila was listed as an endangered species by the Secretary of the Interior in 1967, 32 Fed.Reg. 4001 (1967), and it remains on the list of endangered species *1073 today. 50 C.F.R. § 17.11 (1985). The primary reasons for listing the Palila, in addition to the bird's low population, were that a significant portion of its historical range was no longer occupied and that its present habitat was being adversely modified by feral ungulate browsing.
In 1979, at the time of the Palila I decision, the Palila's estimated population was between 1400 and 1600 birds, which was "dangerously close to that minimum number of individuals below which a population cannot drop if the species is to survive." 471 F.Supp. at 988.
At present, there are approximately 2200 Palila in existence. Although the population is somewhat higher now than in 1979, no clearly defined pattern exists concerning population abundance. Most experts agreed that the bird has not experienced any significant "upward trend." At best, the population remains "static" at a level where the bird is still biologically endangered.
The Palila is totally dependent on the mamane and mamane-naio forests for its existence. The bird's preferred food is the pods of the mamane tree (Sophora chrysophylla), but it will also eat mamane flowers, buds, and leaves, and berries of the naio tree (Myoporum sandwicense). The bird also depends on the mamane for shelter and nesting sites.
The highest densities of Palila are found in well-developed tall pure mamane ecosystems with a native understory. Population studies have also shown a dependence of Palila on wider belts of woodland, i.e., a mamane forest that stretches over a wider altitudinal gradient. This allows the bird to take advantage of seasonal variations in the mamane fruits and flowers, providing it with the most ample and stable food source throughout the year.
In 1977, the U.S. Fish and Wildlife Service officially designated the Palila's critical habitat as a 200 km2 ring around the upper slopes of Mauna Kea. 50 C.F.R. § 17.95 (1985). This area contains the entire known population of Palila and essentially encompasses the existing mamane and mamane-naio forests on Mauna Kea and coincides with the remaining ten percent of the Palila range.Because of the *1074 Palila's various habitat requirements, however, the bird is not spread evenly throughout the critical habitat. The bird is only found in 140 km2 of its 200 km2 habitat, and 75-80% of the population is located in a 10 km2 area close to Puu Laau, which not surprisingly, has the most developed mamane ecosystem on the mountain.
B. The Sheep The European mouflon (Ovis musimon) is a native of Corsica and Sardinia. The sheep are light tan to rich brown, with white on the tail, rump, and underparts, and they have large horns of excellent trophy quality. The State Division of Fish and Game introduced the mouflon onto Mauna Kea with the original hope that they would upgrade the existing feral sheep and modify some of their undesirable characteristics. A total of 99 hybrid sheep and 94 pure mouflon were released between 1962 and 1966. Due to political pressures from hunters, however, the hybridization project was never completed.
The defendant Department of Land and Natural Resources presently maintains the mouflon population for sport-hunting purposes within the Mauna Kea Game Management Area. (This state game management area happens to include most of the Palila's critical habitat.) The mouflon has become exceedingly popular with local hunters because of its excellent sporting, meat, and trophy qualities. As of March 1986, there were approximately 501 mouflon sheep within the Game Management Area, including some adjoining ranchland. Most of these sheep (412) were found within the Palila critical habitat, although there were no sheep presently located near Puu Laau, the area of highest Palila density.
THE LAW Under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982), the Secretary of the Interior is authorized to declare species of animal life "endangered" and to identify the "critical habitat" of these species. Once a species *1075 has been listed as endangered, section 9 of the Act makes it unlawful for any person to "take" any such species. 16 U.S.C. § 1538(a)(1)(B). As defined by the Act, the term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). At issue in this litigation is whether the state's maintenance of mouflon sheep on Mauna Kea "harms" the Palila so as to result in a "taking."
The Secretary of the Interior has defined "harm" to mean:
an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. § 17.3 (1985).
I understand this to prohibit activities that significantly modify or degrade the habitat, resulting in actual injury to the wildlife species. This would include activities that significantly impair essential behavioral patterns to the extent that there is an actual negative impact or injury to the endangered species, threatening its continued existence or recovery.
A. The Secretary's Redefinition of Harm The proper interpretation of the term "harm" has been disputed by the parties throughout the proceedings. In particular, defendants stress the Secretary's redefinition of the term in 1981. These amended regulations, however, did not embody a substantial change in the previous definition.Under both the original definition and the definition as amended in 1981, "harm" may include significant habitat destruction that injures protected wildlife.
Defendants argue that, following my Palila I decision, the Secretary redefined "harm" to stress that there must be an "actual injury" to wildlife from habitat destruction or modification. Defendants argue that a showing of "actual injury" requires plaintiff to show a present pattern of decline in the number of Palila. They argue that because the Palila population has remained static, or is perhaps slightly larger than at the time of Palila I, there is no evidence that the mouflon are harming Palila.
Defendants' expert witness, Dr. Mountainspring, further stressed the distinction between "actual" and "potential" harm. He argued that the mouflon are not presently harming Palila because the sheep eat primarily the shoots and sprouts of mamane, whereas the birds feed primarily on the seeds and pods. Thus, the sheep are not depriving Palila of their food source at present. He conceded, however, as did each expert at trial, that the mouflon sheep are presently degrading the mamane forest, that this degradation is irreversible because it is suppressing the forest's regeneration, that Palila depend on mamane for their existence, and that continued degradation could drive the Palila into extinction. Defendants maintain, though, that any effect the mouflon has on mamane and indirectly on Palila is only a "potential" injury and does not fall within the redefinition of harm.
I refuse to accept, the Secretary's final redefinition does not support, and Congress could not have intended such a shortsighted and limited interpretation of "harm." A finding of "harm" does not require death to individual members of the species; nor does it require a finding that habitat degradation is presently driving the species further toward extinction. Habitat destruction that prevents the recovery of the species by affecting essential behavioral patterns causes actual injury to the species and effects a taking under section 9 of the Act.
*1076 In passing the Endangered Species Act, it is "beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Tennessee Valley Authority v. Hill,437U.S.153, 175, 98S. Ct.2279, 2292, 57L. Ed. 2d117 (1978). Moreover, Congress was aware that the primary threat to endangered species was destruction of habitat. 437 U.S. at 179, 98 S.Ct. at 2294. Thus, one of the main purposes of the Act was conservation and preservation of the ecosystems upon which endangered species depend. 16 U.S.C. § 1531(b). It is clear, then, that Congress intended to prohibit habitat destruction that harms an endangered species.
The Secretary originally defined harm as follows:
"Harm" in the definition of "take" in the Act means an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of "harm."
This definition was in effect at the time of my Palila I decision.
In 1981, the Secretary proposed to amend the definition of "harm" to read simply "an act which injures or kills wildlife." 46 Fed. Reg. at 29,490. He reasoned that under the original definition, a showing of habitat modification alone, without any concomitant injury to wildlife, could be sufficient to invoke the criminal penalties of section 9. 46 Fed.Reg. at 29,490. Under this proposal, "harm" would require actual death or injury to individual species members.
The Secretary received 328 comments on the proposed redefinition, 262 of which *1077 were in opposition to the proposal. The Secretary thus did not adopt the original proposal, but promulgated the version that exists today. The Secretary explained that "harm" was being redefined
to mean any action, including habitat modification, which actually kills or injures wildlife, rather than the present interpretation which might be read to include habitat modification or degradation alone without further proof of death or injury. Habitat modification as injury would only be covered by the new definition if it significantly impaired essential behavioral patterns of a listed species.
The Secretary clarified his intent that the redefinition did not limit harm to
direct physical injury to an individual member of the wildlife species.... The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species. 46 Fed.Reg. at 54,748.
Thus the redefinition stresses the critical link between habitat modification and injury to the species. Obviously since the purpose of the Endangered Species Act is to protect endangered wildlife, there can be no finding of a taking unless habitat modification or degradation has an adverse impact on the protected species. As the Secretary explained, however, this injury to the species does not necessitate a finding of death to individual species members. Drawing from this, I conclude that a showing of "harm" similarly does not require a decline in population numbers. The Palila is hovering at or near the critical population mark; it is both biologically and legally endangered. Until the bird has reached a sufficiently viable population to be delisted, it should not be necessary for it to dip closer to extinction before the prohibitions of section 9 come into force. The key to the Secretary's definition is harm to the species as a whole through habitat destruction or modification. If the habitat modification prevents the population from recovering, then this causes injury to the species and should be actionable under section 9.
MOUFLON SHEEP ARE HARMING THE PALILA At the time of the Palila I decision, the record was clear that feral sheep and *1078 goats had a severe negative impact on the mamane forest. By consuming the shoots and seedlings, the animals prevented regeneration of the forest and thus brought about the "relentless decline of the Palila's habitat." 471 F.Supp. at 990. As Mr. Giffin has summarized,
The feeding and herding habits of feral sheep have a devastating effect on the endemic mamane forest. The most serious problem occurs at timber line. Tree growth and reproduction are almost totally prevented due to constant browsing pressure. Many mature plants exhibit definite browse lines. Old trees are dying without replacements, causing the upper forest line to recede each year.
The loss of mamane also affects grasses and herbs which commonly grow under each tree at higher elevations. These plant communities depend on fog drip from branches and leaves for much of their moisture. When an individual tree dies, the associated ground cover rapidly disappears. Soils are then subject to wind and water erosion. Trampling and soil disturbance by feral animals speed this process. Vast areas that were formerly covered with vegetation are now sterile sand and cinder slopes.
The record was similarly clear that this loss of habitat was the most important factor limiting the Palila population. Continued destruction of the forest would have driven the bird into extinction. As it was, the bird was, and still is, at the critical population level, that is, perched on the verge of extinction. The bird is thus highly susceptible to harm from other environmental factors, such as fire or drought. At the time then, the continued presence of feral sheep had a severe negative impact on the Palila by indirectly suppressing the population figures to a level which threatened extinction and by preventing the expansion or recovery of the population. These factors supported my decision to order removal of the feral sheep and goats in Palila I.
Now I must determine whether mouflon sheep have a similar negative impact on the mamane and on the Palila. If the mouflon sheep are similarly "harming" the Palila, the Endangered Species Act mandates their removal.
A. Impacts of Mouflon on Mamane and on Palila Since the Palila I decision, Dr. Giffin has conducted extensive research into the mouflon. His findings on the mouflon feeding habits and the corresponding impact on the ecosystem are of particular significance.
Mouflon sheep also prefer the mamane habitat. They depend on mamane for shade, concealment, moisture, and most importantly, for food. Unfortunately for the Palila, mamane is also the favorite food of the mouflon sheep and is the most important item in the mouflon diet. (The mamane is a legume and is therefore very tasty.) The mouflon eat the leaves, stems, seedlings, and basal shoots of the mamane; they also commonly strip and eat the bark of the tree. The sheep also eat grasses and the pukiawe shrub, although these items are of lesser importance in the diet.
Defendants argue that mouflon do not have as deleterious effect on the mamane habitat as the feral sheep, because they do not eat exclusively mamane. However, Giffin and others have concluded that the mouflon's feeding habits are "essentially the same" as those of the feral sheep. *1079 Like the feral sheep, the mouflon also overbrowse the mamane, particularly at timberline. This feeding similarly results in lower abundance and growth rates of mamane, poor survival of mamane seedlings and saplings, and general destruction of the native understory.
Defendants also argue that the mouflon sheep travel in smaller herds than the feral sheep and thus cause less harm to the mamane ecosystem. While mouflon herd size does tend to be smaller, this difference does not seem to be significant. Scowcroft and Giffin conclude that mouflon sheep have essentially similar herding habits, behavior, and habitat use as feral sheep. In short, mouflon are "potentially as destructive to the mamane subalpine woodland as feral sheep."
The mouflon sheep impacts are readily apparent on Mauna Kea. Portions of the mountain, where mouflon sheep populations are, or have been, high, are heavily damaged. In these areas, there is heavy overgrazing, a decrease in total ground cover, a sharp browseline, many dead mamane (snags), and little or no regeneration. The suppression of mamane is particularly acute at treeline. Research has shown that if the mouflon sheep were removed from these areas, regeneration would occur with time.
Thus the evidence shows that at their present level, which is approximately the number of sheep necessary to maintain a viable sport hunting population, mouflon sheep are having the same destructive impact on the mamane as the feral sheep. The mamane forest in its present state is at its peak carrying capacity. In other words, the Palila population may be as large as it can be now, given the condition of the *1080 mamane on the mountain. Continued grazing by mouflon will continue to suppress mamane growth and regeneration. This in turn will harm the Palila in one of two ways. Either the mouflon sheep will further degrade the mamane ecosystem, thus decreasing the remaining Palila habitat and further depressing the Palila population. Or, at best, the mouflon will merely slow or prevent the recovery of the mamane forest, suppressing the available food supply and nesting sites for Palila, and thus preventing the Palila population from expanding toward recovery.
In conclusion, I find that the mouflon sheep are harming the Palila within the definition of 50 C.F.R. § 17.3. The mouflon are having a significant negative impact on the mamane forest, on which the Palila is wholly dependent for breeding, feeding, and sheltering. This significant habitat degradation is actually presently injuring the Palila by decreasing food and nesting sites, so that the Palila population is suppressed to its current critically endangered levels. If the mouflon continue eating the mamane, the forest will not regenerate and the Palila population will not recover to a point where it can be removed from the Endangered Species List. Thus, the presence of mouflon sheep on Mauna Kea threatens the continued existence and the recovery of the Palila species. If the Palila is to have any hope of survival, the mouflon must be removed to give the mamane forest a chance to recover and expand.
B. Inappropriateness of Multiple Use Approach The State argues for multiple use on Mauna Kea, asserting that both mouflon sheep and Palila can coexist on Mauna Kea. The State's position stems from their conflicting obligations to foster sport-hunting and to protect endangered species such as the Palila. They argue, based in part on recommendations by their wildlife biologist, Jon Giffin, that with careful management and oversight, it is possible both to maintain a viable sport-hunting population of mouflon and to enhance the mamane ecosystem to encourage the survival of Palila.
The State acknowledges that the mamane ecosystem on Mauna Kea has been severely damaged by grazing ungulates, but they argue that since the feral sheep removal program began in 1982, there has been dramatic regeneration in some areas. Furthermore, the State is undertaking steps to improve the mamane forests and to minimize the impact of the mouflon. The State argues that it will be a number of years before it can be determined what impact the mouflon actually are having on the mamane, and that in the meantime, this court should allow the present mouflon population to remain on Mauna Kea under strict management and surveillance.
There are several major problems with the State's position. First, it is unclear *1081 whether the mamane forests are regenerating to any significant extent. Even if the mamane seedlings were taking root, it would take between 25 and 50 years before the trees were large enough to withstand grazing by sheep and to provide food and shelter for the Palila. Thus, Palila would not benefit from today's regrowth for many years.
Second, and more importantly, the Endangered Species Act does not allow a "balancing" approach for multiple use considerations. I have found that mouflon sheep are "harming" the Palila population within the meaning of 50 C.F.R. § 17.3. Once this significant negative impact has been shown, the Act leaves no room for mixed use or other management strategies or policies. In addition, all of the experts agreed that, biologically speaking, mouflon were harming Palila that is, mouflon sheep are basically incompatible with the mamane ecosystem which the bird needs to survive. It was only when the State's experts were faced with the competing objectives of trying to maintain viable populations of both sheep and bird, that they advocated a policy of "coexistence" with Palila.
Jon Giffin, who was called by the State, as the leading expert on mouflon sheep, agreed that mouflon have a substantial negative impact on the mamane, are as potentially destructive as feral sheep, and that, considering the issue from a biological standpoint alone, the mouflon should be eradicated. However, when faced with the State's management objective to "maximize sheep numbers while still protecting endemic vegetation," Giffin recommended a density of fifteen sheep per square mile in prime habitat, ten sheep per square mile in good habitat, and five per square mile in lower quality habitat. Giffin's report candidly admits, however, that optimum *1082population numbers have not been determined for mouflon, and that continued study is necessary so that the sheep density can be adjusted as needed.
I cannot accept this essentially "experimental approach" as applied to the endangered Palila. Giffin admitted on the stand that there are no quantitative studies to support his figures and that they were simply "starting points for management." Giffin and others acknowledged that it is wholly uncertain whether mamane recovery would occur at this level or whether degradation of the forest would continue. Moreover, Giffin agreed that it would take many years to determine if these estimates are appropriate. This approach plays Russian roulette with a critically endangered species. Sheep densities will only be adjusted in response to a negative impact on the mamane or Palila. However, biological time lags impede an accurate analysis of species interaction, and by the time mouflon numbers have been readjusted, Palila may be extinct.
CONCLUSION In conclusion, I find that the presence of mouflon sheep in numbers sufficient for sport-hunting purposes is harming the Palila. They degrade the mamane ecosystem to the extent that there is an actual present negative impact on the Palila population that threatens the continued existence and recovery of the species. Once this determination has been made, the Endangered Species Act leaves no room for balancing policy considerations, but rather requires me to order the removal of the mouflon sheep from Mauna Kea.
The mamane forest can be expected to recover slowly when released from the current browsing pressures. At some point in the future, the mamane on Mauna Kea may have recovered sufficiently to support Palila beyond its current endangered population. Likewise, at some future date, the forest and the bird population may be sufficiently stable to allow the coexistence of some mouflon sheep with Palila. At present, however, the Endangered Species Act mandates the protection of the Palila to the extent possible, in the hope that this bird does not join the many other indigenous species that have disappeared from these islands.
The foregoing constitutes my findings of facts and conclusions of law in accordance with Fed.R.Civ.P. 52. Based on these findings and conclusions, the plaintiffs are to draw up an appropriate order and send it to this court, through the defendant State and the defendant/intervenors. The order shall *1083 reflect the conclusion of this court that the mouflon sheep are to be removed from the critical habitat of the Palila on Mauna Kea. In addition, the order shall be combined with my previous order of 1979 mandating the removal of the feral sheep and goats. Finally, it shall also specifically order the removal of the hybrid mouflon/feral sheep, which the State has, in practice, been eliminating along with the feral sheep.